State vs Mushtaq Ahmed Malik & Anr
2021 Latest Caselaw 311 j&K

                                                                     Sr. No. 203


                `HIGH COURT OF JAMMU AND KASHMIR
                            AT JAMMU

                                                        SLA No.91/2016
                                                        c/w
                                                        CONCR No.83/2016
                                                        CR1A(AD) No.08/2021
                                                               Date:17.03.2021


State                                               ...Appellant

                      Through: Mr. Vishal Sharma, ASGI

               versus
Mushtaq Ahmed Malik & anr.                          ...Respondents
                      Through: Nemo

Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                 JUDGMENT

Tashi Rabstan-J A. SLA No.91/2016

1. For the reasons detailed in the application coupled with the submissions

made at the Bar, the application is allowed permitting the appellant to file the

acquittal appeal.

B. CONCR No.83/2016

2. The instant application came to be filed on 20.08.2016 and notice was

issued on 29.12.2016. Thereafter, fresh notice was issued on 17.02.2017.

However, till date none has put in appearance on behalf of respondents. In

these circumstances, we have no option but to condone the delay in filing the

acquittal appeal. Ordered accordingly.

3. With the consensus of learned counsel for the appellant, we have taken

the appeal for final hearing. However, before starting the hearing, the file was Page 2 of 7 CR1A(AD) 08/2021

sent in the Registry for diarizing the Criminal Acquittal Appeal and it has been

numbered as CR1A(AD No.08/2021.

C. CR1A(AD) No.08/2021

4. This Criminal Acquittal Appeal is directed against the judgment dated

23.01.2016 delivered by the learned 1st Additional Sessions Judge (Special

Court under NDPS Act), Jammu in Complaint No.06/2010, whereby, the

respondents-accused came to be acquitted of the charges under Sections

8/20/21/23/28/60 of NDPS Act.

5. We have heard learned counsel appearing for the appellant, gone through

the file and also perused the judgment under appeal.

6. The main ground taken in the memo of appeal is that the learned trial

Court has failed to consider the merit of evidence. It is averred that both the

accused had admitted before the Gazetted Officer regarding

possession/recovery of 1.8 Kgs charas from their vehicle, but the judgment

under appeal is silent as regards the defence evidence.

7. A perusal of the file reveals that in order to prove the guilt of accused the

prosecution had produced as many as 10 witnesses. PW Rajeev Kumar,

Inspector had specifically deposed that the vehicle-in-question was being

driven by accused Mushtaq Ahmed, whereas rest of the three persons sitting in

the vehicle were Feroz Shah, Ali Mohammad and Syed Abdul Rashid. He

further deposed that after personal search of all the persons, neither any

incriminating material was recovered from them nor from the vehicle, and after

inquiry, two persons, namely, Ali Mohammad and Abdul Rashid were found to

be innocent and he decided to let them off. He further deposed that both the Page 3 of 7 CR1A(AD) 08/2021

accused Mushtaq Ahmed and Feroz Shah were taken to Headquarter by Shri

Gurdesh Pal, Superintendent, Preventive Central Excise, in his vehicle and the

maruti car belonging to accused was taken to Headquarter by Inspector

Manjeet Singh, wherein one sepoy was also sitting. He also deposed that the

vehicle of accused remained in the possession of Manjeet Singh for 45

minutes. He further deposed that this is incorrect that PW Joginder was

working as a Safai Karamchari in their office. This is also incorrect that he told

Ashok Kumar, a mechanic to take out the seized material kept under the

vehicle.

8. PW Gurdesh Paul Singh, Superintendent, Preventive Central Excise had

deposed that no incriminating material was recovered from the vehicle on the

spot. He further deposed that all the accused persons were taken to office.

9. PW Manjeet Singh, Inspector, had categorically deposed that no

contraband from the accused or from the vehicle was recovered on spot, nor the

same was seized in the office in his presence. He further deposed that he had

no knowledge as to wherefrom Inspector Rajeev Kumar had brought the seized

material and that it was Inspector Rajeev who had called the Mechanic Ashok

Kumar.

10. PW Naginder Kumar, Sepoy had specifically deposed that nothing was

recovered on spot from the accused or from their vehicle and that the vehicle of

accused was brought in the office by the custom officials, whereas the accused

were brought in the office in their official vehicle.

Page 4 of 7 CR1A(AD) 08/2021

11. PW Joginder Maish, though projected as an independent witness, had

categorically deposed that at the relevant time he had been working as a Safai

Worker in the Custom Office itself.

12. PW Ashok Kumar, a mechanic, had specifically deposed that

departmental persons had asked him to take out the pouch from underneath the

vehicle. He further deposed that the bag was visible to any person if he would

lie down under the vehicle as the bag was tied with a rope.

13. Out of the ten prosecution witnesses, 7 were custom officials, whereas

one was the Forensic Expert and only two prosecution witnesses, namely,

Joginder Masih and Ashok Kumar were cited to be the so called independent

witnesses.

14. As per the prosecution story, a team of five officers/officials of Custom

& Central Excise laid a naka at link road near Raipur at 1100 hrs. PW Rajeev

Kumar, Inspector had categorically deposed that there were four persons in the

vehicle-in-question and on searching them on-spot nothing incrimination

material was recovered either from all the four persons sitting in the vehicle or

from the maruti car. When nothing incriminating material was recovered either

from the car or from all the four persons, then how the custom officials came to

know that out of all these four persons, two were innocent and two were

culprits, and what prompted the custom officials to let off Ali Mohammad and

Abdul Rashid, and took respondents Mushtaq Ahmed and Feroz Shah to

custom office in their official vehicle, while the maruti car of respondents was

taken to Headquarter by Inspector Manjeet Singh, wherein one sepoy was also

sitting.

Page 5 of 7 CR1A(AD) 08/2021

15. Further, PW Inspector Rajeev Kumar had deposed that "this is incorrect

that PW Joginder was working as a safai karamchari in their office." Whereas,

PW Joginder had specifically deposed that he was not called, rather at the

relevant time he was posted in the custom office itself; meaning thereby PW

Inspector Rajeev Kumar had made a wrong statement. Not only this, PW

Inspector Rajeev Kumar had also deposed that "this is incorrect that he told

Ashok Kumar to take out the seized material kept under the vehicle." Whereas,

PW Ashok Kumar had specifically deposed that the vehicle-in-question was

parked in the compound of the office and the departmental persons had asked

him to take out the pouch from underneath the vehicle." Thus, from the

deposition of both the so called independent witnesses, it seems Inspector

Rajeev Kumar had made the wrong deposition, thus, has committed the offence

of perjury.

16. PW Gurdesh Paul Singh, Superintendent, Preventive Central Excise had

deposed that all the accused persons were taken to office. Whereas, PW

Manjeet Singh had categorically deposed that no contraband was seized in the

office in his presence nor he has any knowledge as to wherefrom Inspector

Rajeev Kumar had brought the seized material and it was Inspector Rajeev who

had called the mechanic, i.e., PW Ashok Kumar.

17. PW Inspector Rajeev Kumar had specifically deposed that "since there

was no intelligence with respect to two persons and also when nothing was

recovered from them, he decided to let them off;" meaning thereby the custom

officials had already the intelligence information that out of four persons sitting

in the car, only respondents-accused were carrying the contraband. Once they

had specific intelligence information then it is very strange that five numbers of Page 6 of 7 CR1A(AD) 08/2021

custom officials could not find a bag of charas tied underneath the vehicle with

a rope. Whereas, as per the statement of mechanic, PW Ashok Kumar, the bag

was visible to any person if he would lie down under the vehicle as the bag was

tied with a rope. Once the pouch was easily visible to any person, then it is

strange enough what type of search five numbers of custom official made to

the vehicle. Not only this, PW Ashok Kumar had specifically deposed that the

departmental persons called him in the afternoon and themselves asked him to

take out the pouch from underneath the vehicle; meaning thereby the custom

officials were already having the knowledge of a pouch having been tied

underneath the vehicle-in-question. Whereas, as per the deposition of all the

five customs officials themselves, when they searched the vehicle on spot,

nothing incriminating material was found from the vehicle. On one side all the

custom officials had deposed that nothing incriminating was found when they

searched the vehicle, and, on the other side, they themselves asked the

mechanic to take out the pouch from underneath the vehicle. Thus, it seems to

be nothing, but a story concocted by the custom officials themselves and in the

melee respondents-accused have been made scapegoat by these very custom

officials. We are saying so because it has also specifically come in the

deposition of Inspector Rajeev Kumar that when nothing incriminating was

found in the vehicle, the vehicle-in-question, thereafter, remained in the

possession of Inspector Manjeet Singh for 45 minutes. Once during search all

the five custom officials found nothing incriminating in the vehicle and after

the vehicle remained in the custody of Inspector Manjeet Singh, they claimed

to have found the bag of contraband tied underneath the car. These are two

self-contradictory statements and it causes a reasonable doubt about the Page 7 of 7 CR1A(AD) 08/2021

genuineness of alleged contraband found in the vehicle seized by the custom

officials.

18. Therefore, in view of what has been analysed and discussed above, we

do not find any reason to take a view other than the one taken by the learned

trial Court. Accordingly, Criminal Acquittal Appeal fails and the impugned

judgment dated 23.01.2016 recording acquittal of respondents is upheld.

19. A copy of this judgment be sent to the learned trial Court.

            JAMMU                                (SANJAY DHAR)             (TASHI RABSTAN)
            17.03.2021                                  JUDGE                       JUDGE
            (Anil Sanhotra)

                                                      Whether the order is speaking? : Yes/No

                                                      Whether the order is reportable? : Yes/No




ANIL SANHOTRA
2021.03.31 15:28
I attest to the accuracy and
integrity of this document